During
the trial, two band members testified about remembering Russell at the club
that night, describing his enthusiastic dancing in front of the stage and his
apparent enjoyment of the music. Both
band members stated that Russell appeared to be having a good time. In compliance with the trial court's earlier
ruling, the witnesses were not asked and did not testify about the incident
with the bartender's son or Russell's statement. Stewart did testify that Russell

"had a knife on his side that he decided to like flash
me. * * * He just picked his shirt up
like that and drop[ped] it like that."

Stewart then went on to describe the knife.

After
the state completed its direct examination of Stewart, defense counsel argued outside
the presence of the jury that defendant should be entitled to impeach Stewart
by bringing up the incident with the bartender's son. He argued that the defense had never heard before
that moment that Russell appeared to be having fun at the bar, and that he
should be permitted to impeach the statement that Russell was having fun with
the fact that, in that context, Russell had gotten into a confrontation with
the bartender's son and had said that he wanted to "slash" him. The trial court observed that it could not
actually be a surprise to anyone that Russell was having a good time at the bar
and ruled that it was "not proper impeachment."

The
trial progressed. Among other things, the
state presented the testimony of several of the individuals who had been with
the victim at the time of the stabbing who testified that they saw defendant
stab Mark Lunsford, and that, after initially behaving aggressively, Russell
just stood to the side while the fight was taking place. Through cross-examination, defense counsel
was able to draw out the following facts, among others, in support of
defendant's theory of the case:

Although Crowley remembered punching defendant
in the side of the head and Barnett remembered throwing a rock at him,
defendant did not appear to be injured when he was arrested. Moreover, although Russell testified that, in
the course of the brawl, he had been punched in the side of the head, that an
object had hit the ground near him and he had surmised that a rock had been
thrown at him, and that he had been injured, none of the members of the
victims' group remembered fighting with Russell.

Although Barnett testified at the trial that he
saw defendant stab Lunsford, he initially told the police that Russell was the person
with the knife and the person who had stabbed the victim.

Although Thomas Lunsford, the victim's brother,
testified at trial that he saw defendant stab the victim, he initially told a
police officer that he had been walking in front of the rest of the group
before the fight occurred, that he had heard someone yell from behind him that
his brother had been stabbed, and that he rushed back to the group and found
his brother bleeding.

None of the victim's blood was found on
defendant's clothing.

The state presented witnesses who testified
that, two weeks before the fight, defendant bought a knife with a sheath depicting
the Mexican flag and that he wore it on his belt all the time. No such knife ever was found, despite an exhaustive
search. The sheath was not found either,
notwithstanding the fact that defendant's belt and belt buckle were found at
the location of the fight.

Russell admitted to a friend the day after the fight
that he "may have" stabbed someone during the fight, although he was
not sure.

At the conclusion of the state's
case, defendant moved for judgment of acquittal, arguing that the state's
evidence did not prove beyond a reasonable doubt that defendant committed the
charged offenses. The trial court denied
the motion. Ultimately, the jury found
defendant guilty of the murder of Mark Lunsford and of the attempted murder of
Crowley. Defendant appealed his
convictions to the Court of Appeals, which, as noted, affirmed without opinion.

As
we have often stated, the threshold for admission of evidence on grounds of
relevance is low: "[E]vidence is
relevant so long as it increases or decreases, even slightly, the probability
of the existence of a fact that is of consequence to the determination of the
action." State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999); accordState v. Hampton, 317 Or 251, 255, 855 P2d 621 (1993); OEC 401
(relevant evidence is "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence"). Indeed, in considering that matter, the
inference that the proponent of the evidence wishes to be drawn from the
evidence need not be the necessary, or even the most probable, one. Hampton,
317 Or at 255 n 8.

Thus,
the question is whether Russell's statement increased, even slightly, the
probability that Russell was the person who stabbed Mark Lunsford. Russell responded to an altercation with the
bartender's son by stating he wanted to "slash" that individual. Stewart testified in the offer of proof that
he took Russell's statement seriously enough to alert the bartender, who then
sent her son home in a taxi. One
inference that the jury was entitled to draw from Russell's reaction to the
seemingly minor altercation with the bartender's son was that Russell was in an
angry frame of mind on the night in question.
That may not be the only inference that could be drawn, given the other
evidence of Russell's behavior at the club, but it is a permissible one. Russell's statement, therefore, was at least
some evidence of his general state of mind at the time that he made the
statement.

That
evidence then must be considered together with the evidence that, an hour and a
half later, Russell recruited defendant to confront the victim and his friends
and instigated the fight with them. From
Russell's later actions, the jury further reasonably could infer that Russell's
state of mind was an ongoing one. Put
another way, the jury reasonably could conclude that Russell's general state of
mind on the night in question was such that, when he was offended, he would
respond in anger and with a willingness to "slash" his offender.

Those
inferences, in turn, would make it more probable that Russell slashed at Mark
Lunsford with his knife and less probable that Russell simply stood by while
defendant and the victim's friends were engaged in the fight, as Russell later
claimed. So viewed, the evidence of
Russell's expressed state of mind was relevant to the central dispute in the
case: Which person -- defendant or
Russell -- stabbed Mark Lunsford?

The
evidence being relevant, it was admissible unless excluded by some other rule,
law, or case. OEC 402. As discussed above, defendant claimed that
Russell's statement was admissible under OEC 404(3), while the state claimed
that it was not. That rule
provides:

"Evidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."

Although defendant, in his argument to the trial court,
implicitly conceded that Russell's statement about wanting to slash the
bartender's son was a "wrong" or an "act" under OEC 404(3),
we do not find it necessary to resolve that issue. Instead, we shall assume that the statement
was an "act" within the meaning of OEC 404(3), and concern ourselves
with whether evidence of that "act" was nonetheless admissible under
the rule. See State v. Hayward, 327 Or 397, 409, 963 P2d 667 (1998) (using
such an approach). We conclude that it
was. Defendant's trial strategy, as we
understand it, was to create a reasonable doubt as to his own guilt by
suggesting to the jury that Russell was the perpetrator. As we have explained, evidence of Russell's
state of mind would permit the jury to conclude, through a short series of
inferences, that Russell stabbed Mark Lunsford.
The evidence of Russell's state of mind thus not only was relevant, it
was critical to defendant's case.

In
arguing to the contrary, the state acknowledges that evidence tending to show that
Russell was "in an angry mood" or had a generalized desire to engage
in violence would be relevant to establish a motive to engage in violence a
short time later. But what the state
fails to acknowledge, and what we think is clear, is that Russell's statement
about wanting to "slash" the bartender's son an hour and a half
before was such evidence. That is, it was evidence from which the jury
reasonably could infer that Russell was generally in an angry or violence-prone
mood -- especially when it is coupled with his later behavior in instigating
the fight with the victim and the victim's friends and recruiting defendant to
join him in that fight.

The
remaining question is whether any error in excluding the statement was
harmless. The state argues that the
tenuous relevance of the statement to defendant's case was rendered negligible
by other evidence. In particular, the
state relies on the fact that defendant admitted that he agreed to go with
Russell to confront the victims, he admitted to provocative words and deeds
with respect to the victim's group, and multiple other witnesses identified
defendant as one of the two instigators of the fight. The state also emphasizes that the jury heard
far more relevant and specific evidence of Russell's motive with respect to the
particular victims in the case. For
example, Russell admitted that he was intoxicated the night of the fight. He admitted that, immediately before the
fight, he engaged in a provocative and heated verbal exchange with the group,
which involved accusations of racism. He
admitted that he was sufficiently provoked by that encounter that he stopped
defendant on the street, described the group as racists, and essentially
recruited defendant to confront them.
The jury also heard evidence that Russell (and defendant) ran at the
group, shouting obscene insults and provoking a fight. Russell himself testified that he was
involved in the fight and that he pulled out his knife and poked at people with
it. The state argues that, given those
circumstances immediately surrounding the fatal fight, whether Russell had a
prior, generalized angry state of mind sheds little light on the question of
who stabbed Mark Lunsford. That is, once
Russell and defendant were in the heat of the battle, Russell's previously
expressed desire to "slash" the bartender's son was of little
probative value in determining who in fact stabbed the victim.

We
think that that argument points precisely the other way. The evidence against defendant, while significant,
was not overwhelming. Given the evidence
that pointed to Russell as the actual perpetrator, we cannot conclude that the
additional evidence of Russell's statement, which suggested an angry state of
mind, would not have tipped the balance toward a reasonable doubt as to
defendant's guilt. The jury could, for
example, reasonably have inferred that the angry state of mind that Russell's
statement suggested persisted over the next hour and a half, and that it
therefore was unlikely that Russell would have "stood by," as he
claimed he did, once the fight began in earnest. Reasonable doubt may be built upon such a
foundation of fact and inference. The
jury should have heard about the statement; its exclusion was not harmless.

The
decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.

"Evidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."

"All
relevant evidence is admissible, except as otherwise provided by the Oregon
Evidence Code, by the Constitutions of the United States and Oregon, or by
Oregon statutory and decisional law. Evidence
which is not relevant is not admissible."